Q. I received a letter from Canada Immigration that my immigration application for sponsorship of my wife was refused. What should I do now?
A. Depending on what immigration office or consulate that you specifically you filed your original sponsorship application, you may have some options. If you filed your sponsorship application in land meaning that it was filed from within Canada, then you can appeal the refusal to the Federal Court of Canada.
In-Canada sponsorship applications are usually spousal sponsorships (parental and grandparent sponsorships are filed from outside Canada). These sponsorships are originally submitted to the Case Processing Cenre in Vegriville, Alberta. Generally, you have 15 days to file your Appeal to the Federal Court for In-Canada Sponsorships. The Federal Court Judge will review the negative decision and determine if there was an error or law or fact made on the part of the immigration officer.
If you filed your spousal sponsorship application overseas, then you also have the option of appealing the refusal to the Immigration Adjudication Division or IAD. The IAD is a “court of equity” which means that it has jursidication to consider not only errors of law or fact but also humanitarian and compassionate factors as well. At IAD hearings, you, as the sponsor, and your spouse, as the applicant, can give testimony about your relationship and other facts about the case.Whether your appeal is filed with the Federal Court or the IAD, be prepared to wait many months and sometimes over a year for your case to be dealt with.
The “best medicine” when it comes to immigration application refusals is prevention. Make sure that before filing your sponsorship application, the application is properly prepared and well-documented. It is always recommended that you consult with an immigration lawyer to ensure your case is in good shape. You may just save yourself a great deal of money and stress that would result from a refusal of your application that could have been prevented.
November 7th, 2008 at 12:04 pm
Michael, do you know what the success rate is for appeals filed at either the Federal Court or the IAD?
November 8th, 2008 at 5:01 pm
Hi Johanna
Generally, Sponsorship Appeals filed at the IAD have a higher success rate than appeals filed to the Federal Court. The IAD is allowed to consider any humanitarian and compassionate factors related to the Sponsorship application whereas the Federal Court is more restricted. Further, the IAD can consider issues and facts arising even after the appeal itself has been filed. However, success at both courts is more likely when the Appeals are properly prepared.
November 19th, 2008 at 4:49 am
Hi there! How long does it takes to get a decision from the day from a filling the sponsorship appeal to the IAD?
thanks
November 19th, 2008 at 9:12 pm
The processing times for IAD Appeals such as Sponsorship Appeals can be lengthy, sometimes over one year. However, in some cases, the IAD may choose to attempt to “settle” the case and hold an Alternative Dispute Resolution (ADR) informal interview. ADR cases can take half the time as regular IAD hearings. At ADR interviews the Sponsor can discuss the case before a Member of the Immigration and Refugee Board and an Appeals Officer. If the Appeals Officer thinks the case has merit, then it could be settled on the spot.
December 19th, 2008 at 4:07 am
My inland application for Landed Residence under the Federal Skilled Workers category was refused in Buffalo after an interview in 2006 with a visa officer who discredited the validity of the one year minimum qualifying work experience that I had from India. I felt that the officer was very hostile and demeaning throughout the interview.
I had read on immigration blogs afterwords that I wasn’t her only “victim.” She had similarly mistreated other Indian nationals who had applied under the Federal Skilled Workers category and refused their applications as well. In fact I had read the full report of another interview she had conducted with another Indian national last year, in which she had displayed the exact pattern of escalating hostility.
She had conducted the interview in a very inconsistent manner, in a clearly threatening and condescending tone and her recorded CAIPS notes were inaccurate and dismissive about the basic facts of my education and work experience. She suggested that I was “trying to get away” with things, like not having tax receipts for the period of my employment in India, even though I repeatedly tried to explain verbally to her that I was not required to file taxes for my income bracket in India.
Having conducted the interview in a belligerent fashion, she then proceeded to refuse my application. I will never forget her face in that last minute of the interview. She visibly struggled to keep the level of unprovoked hostility in her voice under control.
I found the whole experience of the immigration interview very unnerving and discriminatory experience. I opted to file a Judicial Review appeal and found a lawyer to represent me at the Federal Court in 2006/7. As part of the affadavit, I sought and attached more detailed work experience letters pertaining to the qualifying year in India and clarified that I was not required to pay taxes under the Indian Taxation system by getting notarized copies of the Indian Taxation Act’s relevant portions mailed to me.
The Federal Court judge did not allow the appeal. Both the government lawyer and the Federal Court judge again displayed levels of hostility/ intimidation during the trial that one would not normally expect from educated people displayed towards strangers. Basically, even though all the evidence we presented pointed to the fact that the officer had made her decision without looking at all the facts and without providing me with the opportunity to furnish information fully, the judge just went for the most simple criterion to base her decision on: even though the judge saw that with the additional documentation I had provided as part of my affidavit, my application would qualify, she said that that information would not be included within the perview of the court’s decision. She therefore upheld the fettered decision that the officer had delivered.
I am concerned that Canada still prides itself as a country that is welcoming to immigrants when the immigration act itself is open to such restrictive and discriminatory interpretations. Immigrants are defined by the Canadian State as always “other” even if they have been living here for years and made their lives here by studying or working here. The whole purpose of the Immigration and Refugee Act is to ensure that at all points during the application process, the prospective immigrants are subjected to microscopic scrutiny that is invasive and often abusive of their fundamental dignity in a manner that few Canadian citizens would let alone think they could be subjected to, let alone endure.
I have a Masters Degree in English from a Canadian University. I came here as an international student in 2001 to do a PhD., but that turned out to be a Masters because of a supervisory committee that refused to listen to my concerns. My post-graduate work permit was granted 6 months after application, by which time my employer no longer had work for me. That was the reason why I had to use my Indian cumulative part-time work experience while applying for landed residence under the skilled worker category.
When I subsequently found another job and the employer requested an LMO, the HSRD gave a negative opinion based on the fact that there are Canadians and PR’s who are eligible to do the job (of teaching English). Most companies specify in their job descriptions that they only prefer those two categories or native speakers of English without accents to teach English.
Since when are Canadians “native” speakers of English? As far as I know, Canada and India were both colonies of Britian and English is one of the official languages of both countries due largely to the colonial legacy. To consider Canadians as “native” speakers of English is to claim a lineage to Britian in much the same way that Hitler claimed a lineage to the blue-blooded Aryans. The whole nation of Canada is based on this racial/ blood lineage. It is clearly reflected in how the current citizens of the three former colonies that have white majorities - US, Canada and Australia all claim to be “native” speakers of English, and everyone else as a second language learner, no matter how or when or why they came to speak the language.
My specific questions:
(Processing times in New Delhi, a lot of people seem to think, are longer than processing times here, but one lawyer I recently consulted said that the CIC is trying to bring down processing times for skilled worker applications for all visa offices to 6-12 months or so. The reason I am thinking of moving back to India if the processing times aren’t too lengthy is because I don’t want to process another application through the visa office after the experience I had there.
If it does not really matter where my present qualifying work experience comes from (India or Canada), for the purpose of processing the skilled worker application, then I’d rather move back to India and find a job there without seeking to apply for a work permit here. However, if it does matter that having Canadian work experience over having Indian work experience would significantly improve my chances with my skilled worker application in future, then I will ask my prospective employer to seek an LMO and if it is successful, apply for a work permit. My occupation would still come under the new categories of occupation that are eligible for skilled worker application (4131: College, Vocational and Other Instructors: Language Instructors)).
Or if I carefully prepare my application after working here or in India for a year, will that be sufficient to ensure success?
(The first time I applied for landed, I declared and was examined for my disability and was given a basic pass on my medicals).
Thanks for reading.